A dispute over measures violating the rights of a domestic company constitutes a dispute arising directly out of an investment even if the claimant is a shareholder of that company and the investment in question are his or her shares

Assumed consequences by a tribunal's decision, such as a discrimination of nationals not having rights under an IIT or multiple claims by investors of different nationalities under separate IITs, do not preclude the admissibility of a claim

A fork in the road clause precludes admissibility only if the dispute brought to local courts concerns the same obligation as before the tribunal

Waiver of Rights Under an IIT

An exclusive choice of forum clause in a contract cannot bar a tribunal from examining treaty based claims

Investment Treaty Arbitration

Distinction Between Jurisdiction and Admissibility

The distinction between jurisdiction and admissibility is not appropriate in the context of the ICSID Convention

Admissibility

Further Problems

Assumed consequences by a tribunal's decision, such as a discrimination of nationals not having rights under an IIT or multiple claims by investors of different nationalities under separate IITs, do not preclude the admissibility of a claim

Correct Claimant

A state cannot rely on the Barcelona Traction case to question the jus standi of a shareholder in an investor-state arbitration

ICSID Convention

Jurisdiction of the Centre (Articles 25-27)

Article 25

Jurisdiction Ratione Materiae

Investment

Further Problems

A shareholder can bring a claim, even if he or she does not control the company or does not own a majority of its shares

Legal Dispute

A mere governmental policy does not constitute a measure per se

The deciding factors whether a tribunal is seized with one or more disputes are the claim's subject-matter, the scope of consent of the parties and the tribunal's jurisdiction

Arising Directly out of an Investment

A dispute over measures violating the rights of a domestic company constitutes a dispute arising directly out of an investment even if the claimant is a shareholder of that company and the investment in question are his or her shares

Although a tribunal does not have jurisdiction over measures of general state policy, it has jurisdiction to examine specific measures of that policy if they have a direct bearing on the investment

Further Problems

A state cannot rely on the Barcelona Traction case to question the jus standi of a shareholder in an investor-state arbitration

Arbitration (Articles 36-55)

Article 42

General Remarks

While Article 42 ICSID Convention generally applies to the merits, the parties can agree to a different choice of law applicable to jurisdictional questions

Article 46

The deciding factors whether a tribunal is seized with one or more disputes are the claim's subject-matter, the scope of consent of the parties and the tribunal's jurisdiction

ICSID Arbitration Rules

Rule 40

Ancillary claims neither require a new request for arbitration, nor a new six-month period for consultation or negotiation

The deciding factors whether a tribunal is seized with one or more disputes are the claim's subject-matter, the scope of consent of the parties and the tribunal's jurisdiction

Feedback

Above you will find 15 statement(s) from this decision. Please note that when viewing the statements in their context, the same statement may appear multiple times if it is relevant for more than one topic. Did we miss something? Feel free to send us your suggestions!